Prosecutor: Troy shooting victim 'not alive, but not dead'

Bob Gardinie, Times Union

By Bob Gardinier

Updated 8:07 pm, Tuesday, March 4, 2014

Defendant Ariel Myers, left stands with attorney Jay Hernandez as the judge returns to the courtroom during Myers' third trial in the 2009 shooting of Robert Guynup March 4, 2014 in Rensselaer County Court in Troy, N.Y. (Skip Dickstein / Times Union)

Judge Andrew Ceresia instructs the jury before the opening statements during Ariel Myers' third trial in the 2009 shooting of Robert Guynup March 4, 2014 in Rensselaer County Court in Troy, N.Y. (Skip Dickstein / Times Union)

Assistant District Attorney Shane Hugg gives his opening statement during Ariel Myers' third trial in the 2009 shooting of Robert Guynup March 4, 2014 in Rensselaer County Court in Troy, N.Y. (Skip Dickstein / Times Union)

Robert Guynup's family members listen to opening statements during Ariel Myers' third trial in the 2009 shooting of Robert Guynup March 4, 2014 in Rensselaer County Court in Troy, N.Y. (Skip Dickstein / Times Union)

Assistant District Attorney Shane Hug gives his opening statement during Ariel Myers' third trial in the 2009 shooting of Robert Guynup March 4, 2014 in Rensselaer County Court in Troy, N.Y. (Skip Dickstein / Times Union)

Defense attorney Jay Hernandez gives his opening statement during Ariel Myers' third trial in the 2009 shooting of Robert Guynup March 4, 2014 in Rensselaer County Court in Troy, N.Y. (Skip Dickstein / Times Union)

Ariel Myers sits quietly as opening statements are made during Myers' third trial in the 2009 shooting of Robert Guynup March 4, 2014 in Rensselaer County Court in Troy, N.Y. (Skip Dickstein / Times Union)

A prosecutor told a jury Tuesday he would prove Ariel Myers shot Robert Guynup in the head, permanently disabling him almost five years ago, but the defense said there is no hard evidence.

"(Myers) took everything Bob was and everything he will ever be," Assistant District Attorney Shane Hug told a jury of 12 and three alternates. "Bob Guynup is now in a permanently vegetative state, not alive, but not dead."

Myers was in a noisy fighting crowd of young people outside the Griswold Heights apartments at 3:30 a.m. on Sept. 13, 2009, when he allegedly shot Robert Guynup in the ear with what investigators said was a .25 caliber handgun.

The gun was never recovered and prosecutors have no forensic evidence linking Myers to the crime.

The victim, who lives in a single-family home across the street with his wife and three children, was upset that the crowd was disturbing their sleep and was taking pictures of the of people yelling and fighting for evidence to show police what goes on in his neighborhood.

Myers faces two counts of first-degree assault and a count of criminal possession of a weapon.

"This is a tragedy and there is no question Mr. Guynup was shot," said Myers' attorney Jay Hernandez. "The question for you is: can they prove Ariel did it? There was somewhere between 50 to 100 people there that night and the prosecution only has one person they say saw the shooter."

Hug said jurors will hear testimony from a man who was watching from his apartment window and saw an arm raised in the crowd and a blast of flame from a gun muzzle and saw Myers, who he knew from around the complex, running away past his apartment.

The victim's wife took the stand Tuesday and said she heard someone say "This is what you get" just before she heard the shot.

"He was lying crumpled on the sidewalk. I was trying to call my mother and Bob wanted help to sit up," Jody L. Jackson Guynup told jurors. "There was lots of blood all over the ground."

After the first surgery was done to remove the bullet, Guynup said her husband never spoke to her again.

"You did not see who shot your husband, correct?" Hernandez asked.

"Correct," Guynup replied.

"You did not see where the shot came from in the crowd, correct?" Hernandez asked.

"Correct," she replied.

It is Myers third trial on the charges.

In August, 2010, a Rensselaer County jury acquitted Myers, then 19, of attempted second-degree murder but convicted him of first-degree assault in the shooting.

Despite his pleas of innocence, Myers was sentenced to the maximum of 25 years in prison.

The Appellate Division of state Supreme Court in December reversed the conviction and ordered a new trial, ruling prosecutors should not have presented a witness who told jurors he had seen Myers wielding a .25 caliber handgun at the apartment complex just months before the shooting.

Prosecutors will not be able to use that testimony in the current trial and suffered another setback Tuesday just before opening arguments when Judge Andrew Ceresia ruled they could not use "consciousness of guilt" testimony.

In the 2010 trial, prosecutors elicited testimony from police that Myers moved and avoided police contact after the incident.

Myers first trial in May 2010 ended in a mistrial shortly after it began after his appointed attorney Gregory Cholakis informed Ceresia that he and his office had represented some of the prosecution's witnesses in other matters.